When something intrudes into the airspace above a parcel of land, it is generally considered trespass if it interferes with the ordinary use and enjoyment of the land. This is especially pressing during real estate development, as cranes used in construction must often swing into the airspace of adjacent landowners who neighbour the new development. Negotiating crane swing rights can be a lengthy and costly process for developers.
The Janda Group Holdings Inc. vs Concost Management Inc. (2016 BCSC 1503) (“Janda”) decision addressed the issue of whether a crane boom entering a neighbour’s airspace during construction is considered a trespass, which may be blocked through injunction, or a nuisance claim, which may be remedied through damages.
In Janda, the plaintiff asserted that the construction crane boom operating on the neighbouring property intrusively swung into the airspace over its two-storey commercial building, which it owns and manages on behalf of commercial tenants.
The plaintiff brought an application for an interim injunction jointly restraining the defendant landowner and its construction manager from swinging their crane boom over the plaintiff’s property. The defendants submitted that they had attempted to reach an agreement with the plaintiff regarding a reciprocal easement for underpinning and overhead crane swing, but when the plaintiff delayed and did not respond, they proceeded with construction absent of consent.
The British Columbia Supreme Court found that, while the defendants’ crane boom intruded into the plaintiff’s airspace from time to time, this did not necessarily constitute trespass and therefore an injunction would not be the appropriate remedy.
The court adopted a more modern view of airspace rights and concluded that overhanging crane booms are a nuisance, not a trespass, allowing damages to be awarded instead of an injunction.
The court referred to the following factors in considering whether a nuisance or a trespass had been committed:
- There was no evidence that the crane was being operated dangerously;
- The crane was operated by highly experienced and reputable contractors and in accordance with regulatory requirements and safety standards;
- It was inspected by an engineer, WorkSafe BC, and on a daily basis by the operator;
- The crane boom was at a height of 90 feet, making it minimally intrusive;
- No injury had been caused to anyone;
- The crane was unlikely to cause any damage or danger because it did not transport materials over the adjacent properties; and
- The intrusion was not permanent, given that the crane boom spent no more than an hour each day in the plaintiff’s airspace.
The court held that the amount of damages for the nuisance should be more than nominal and should reflect the use of the airspace. In other words, the amount awarded will depend on the facts of each case, including the conduct of the parties.
Importantly, this decision also helps to predict a developer’s risk of an injunction order. Now, a developer who fails to obtain crane swing rights from a neighbouring property will potentially face paying damages for the use of the adjacent airspace, rather than having to halt construction altogether via an injunction.
As courts will closely examine the facts of each case to determine whether a party is liable for nuisance or trespass, it is still in the best interest of both developers and neighbouring landowners to reach an agreement regarding crane swing rights.
In the case of developers, evidence of reasonable and good faith efforts to obtain an agreement may help to minimize the amount of damages owed to any neighbouring landowners. In the case of neighbouring landowners, given that the risk for an injunction has been reduced post Janda, neighbouring landowners may not have the same leverage in negotiations with developers as they once did. Additionally, the quantum of damages for nuisance may also be reduced if the developer’s conduct warrants it, which should provide neighbouring landowners with more of an incentive to reach an agreement.
If the developer is nevertheless unsuccessful in obtaining an agreement, Janda suggests that actions such as minimizing the impact of overswinging, operating the crane safely by erecting the crane pursuant to all applicable safety standards and regulations, and not carrying loads over the neighbouring property will help to mitigate the amount of damages owed to the adjacent landowner. Following these precautions should allow developers to proceed with construction, without fear of an injunction halting the project.
However, despite the change in the law, developers are not entirely off the hook and will still likely have to pay a reasonable amount for their use of any adjacent airspace if the court makes a finding of nuisance in situations where an agreement was not reached with neighbours.
Janda appealed the decision, but its motion for leave to appeal was rejected. The findings of Janda have not been tested in British Columbia courts since the decision was released.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.